R v Johannsen and Chambers - [1996] QCA 111

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 218 of 1995 Appeal No. 219 of 1995
Brisbane
[Johannsen & Chambers v. D.P.P.]
BETWEEN:

PAUL THEODORE JOHANNSEN

(First Applicant) First Appellant

AND:

PAMELA ANN CHAMBERS

(Second Applicant) Second Appellant

AND:

THE DIRECTOR OF PUBLIC PROSECUTIONS

(Respondent) Respondent

FITZGERALD P.
MCPHERSON J.A.

THOMAS J.

Judgment delivered 30/04/1996

SEPARATE REASONS FOR JUDGMENT OF FITZGERALD P., MCPHERSON J.A. AND THOMAS J; FITZGERALD P. AND THOMAS J. CONCURRING AS TO THE ORDERS MADE, AND MCPHERSON J.A. CONCURRING WITH THE ORDER THAT THE APPEAL OF PAMELA ANN CHAMBERS BE DISMISSED, AND DISSENTING IN RESPECT OF PAUL THEODORE JOHANNSEN’S APPEAL BEING ALLOWED.

PAMELA ANN CHAMBERS’ APPEAL DISMISSED.
PAUL THEODORE JOHANNSEN’S APPEAL ALLOWED WITH A PERMANENT STAY
GRANTED ON THE INDICTMENT FOR MURDER.

CATCHWORDS:	MURDER - appeal against decision to refuse to stay an indictment for murder - unexplained delay of 20 years in commencing proceedings, with many prospective witnesses deceased - certain evidence unavailable - abuse of judicial process - fair trial
IN THE COURT OF APPEAL	[1996] QCA 111
SUPREME COURT OF QUEENSLAND	Appeal No. 218 of 1995 Appeal No. 219 of 1995
Brisbane
Before	Fitzgerald P. McPherson J.A. Thomas J.

[Johannsen & Chambers v. D.P.P.]

BETWEEN:

PAUL THEODORE JOHANNSEN

(First Applicant) First Appellant

AND:

PAMELA ANN CHAMBERS

(Second Applicant) Second Appellant

AND:

THE DIRECTOR OF PUBLIC PROSECUTIONS

(Respondent) Respondent

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 30/04/1996

Since judgment was reserved in these appeals, one of the appellants, Pamela Anne Chambers, has died.

The appeals were brought by Mrs Chambers and Paul Theodore Johannsen (“the appellants”) from

a decision of a Judge of the Trial Division who refused to stay an indictment charging them with the

murder of Joel John Wlodarczyk. According to the prosecution case, the victim was shot and killed

at New Farm at about 10 p.m. on 18 February 1974 and his body was found floating in the Brisbane

river near the wheat wharf at Pinkenba on 20 February 1974. He had a number of injuries including a gunshot wound to the neck which caused his death, and had been severely beaten with a weapon

before the shot which killed him. The appellants were charged more than 20 years later, on 5 July

1994. The prosecution alleges that Mrs Chambers shot the victim and that Mr Johannsen was present.

Broadly summarised, the prosecution case is that, on 10 February 1974, a painter and docker,

O’Connor, died and, on 15 February, another painter and docker, Reeves, was shot and injured.

O’Connor’s funeral was held on 18 February, after which there were a number of “wakes” at which

painters and dockers were present. One such meeting occurred that night at premises at 100 Sydney

Street, New Farm, rented by Jeff and Roma McIntosh. Those present were Mr & Mrs McIntosh, the

victim Wlodarczyk (also known as Grovner and Gravner), who also resided at the premises, Paddy

Delaney (also known as David Richard…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1996] QCA 111
Decision Date: 30/04/1996

CaseChat Overview and Summary

In this case, Johannsen and Chambers, the respondents, appealed against the decision of the Court of Criminal Appeal to refuse a stay of proceedings against them for the murder of two police officers. The case arose from an incident that occurred 20 years prior, leading to significant delays in the commencement of legal proceedings. The respondents argued that the delay, combined with the unavailability of certain evidence and the deaths of prospective witnesses, constituted an abuse of judicial process and would prejudice their right to a fair trial.

The court was required to determine whether the unexplained delay in commencing the murder proceedings constituted an abuse of process, thereby warranting a stay of the indictment. Additionally, the court had to consider whether the unavailability of certain evidence and the death of witnesses would prejudice the respondents' right to a fair trial. The respondents argued that these factors together constituted an abuse of process that warranted a stay of proceedings under section 346A of the Criminal Procedure Act.

The court held that the delay in commencing proceedings was not sufficient to constitute an abuse of process. The court acknowledged the significant delay but found that it did not prejudice the respondents' right to a fair trial. The court held that the respondents had failed to demonstrate how the delay or the unavailability of certain evidence would prejudice their defence. Furthermore, the court held that the deaths of prospective witnesses did not prejudice the respondents' right to a fair trial, as the respondents had not demonstrated how the deceased witnesses' testimony would have been material to their defence. The appeal was dismissed, and the decision of the Court of Criminal Appeal to refuse a stay of proceedings was upheld.

Orders